Ljubica Bozic and Comcare

[2014] AATA 615

[2014] AATA 615  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/2488, 2011/2489, 2011/2543
Re	Ljubica Bozic
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	RM Creyke Senior Member
Date	29 August 2014
Place	Canberra

The application for reinstatement of these matters is not granted.

.....................[sgd]..............................

RM Creyke Senior Member

Catchwords

COMPENSATION – Commonwealth employee – application for reinstatement – application settled by consent - whether the Tribunal considers it appropriate to reinstate – whether applicant had knowledge of consent agreement.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) s 42A(9)

Case

Secondary Material

REASONS FOR INTERLOCUTORY DECISION

RM Creyke Senior Member

1. Ms Ljubica Bozic made an application to have three matters reinstated by the Tribunal.

2. These were:

   ·A claim for ‘aggravation of Post Traumatic Stress Disorder’ (Matter 2011/2543);

   ·a claim for compensation for ‘cervical sprain, bilateral lateral epicondylitis, bilateral carpal tunnel which was caused by OOS’ [Occupational Overuse Syndrome] (Matter 2011/2489);

   ·a claim for ‘Injury to thoracic spine, injury to cervical spine, chronic neck pain radiating to both arms, post traumatic stress disorder, and injury to sternum/ribs’ (Matter 2011/2488).

3. On 27 September 2012 in accordance with section 42C(1) of the Administrative Appeals Tribunal Act 1975 (Cth) the matters were settled by consent.

4. On 1 July 2014 Ms Bozic applied to have the matters reinstated. The application was opposed by Comcare.

5. An interlocutory hearing to consider submissions was held on 4 August 2014. 

   Background

6. Ms Bozic had a motor vehicle accident in 2009 for which she received a lump sum settlement.  The accepted injuries included post-traumatic stress disorder or depression, and neck and other arm injuries.  Subsequently Ms Bozic made claims for compensation to Comcare under the Safety, Rehabilitation and Compensation Act 1988 (Cth) for aggravation of those injuries and for carpal tunnel syndrome.

7. At the hearing, Ms Bozic’s evidence was that she initially contacted a firm of solicitors to represent her in the claim against Comcare in May 2011.  She had attended their office when evidence was taken. She also acknowledged that when she was in financial difficulties, the firm had assisted her to access funds to which she was entitled.

8. She said that in July/August 2012, the firm contacted her about funding to seek advice from a barrister in relation to her matter.  Ms Bozic said she borrowed the amount and then had an appointment with the barrister in September 2012.  The barrister had another person in attendance and she understood this person was from the firm of solicitors she had engaged. 

9. During the consultation it was her evidence that she was advised not to proceed to the Tribunal as her case was not strong.  She said the advice came as a shock and she was concerned about her financial situation.

10. A few days later she said she went to her solicitors and was given a hand-written piece of paper which she was asked to sign.  She understood it was a settlement and she was giving her solicitor permission to receive the settlements monies from Comcare.  Her evidence was that the paper was handwritten, it had no date, and it contained a small amount for payment to the firm.  Her solicitor advised her that following the advice of the barrister, he would not go ahead with the action. She acknowledged that the firm had returned the funds she had provided for the barrister’s advice.  About three weeks later she received that money.

11. Subsequently she went to several firms of solicitors who did not agree to take on the matter as her matter had been settled.  Eventually in about November 2012, a firm provided her with a copy of the consent agreement which she claimed to have seen for the first time.  However, the firm suggested she represent herself.

    Consideration

12. Ms Bozic conceded that when she receives emails she reads and prints out some.  Others she deletes without reading.  She conceded that she may have deleted emails from her original firm of solicitors concerning the consent agreement.  She said she had received an email from her solicitor two to three weeks after she had seen the barrister but she had not read it and deleted it immediately.  Her contention is that she did not legally consent to the settlement proposal as she was unaware that this was proposed.

13. At the request of the Tribunal, Ms Bozic provided the Tribunal with a file of papers concerning the matter.  That file contained the following documents:

    ·A file note prepared by her firm of solicitors concerning the consultation with the barrister and its outcome which had been emailed to Ms Bozic on 21 September 2012.  The file note explained the reasons for the outcome, namely, that Ms Bozic had already received compensation for injuries arising from her motor vehicle accident and that raised ‘serious issues about making any claim for a workers’ compensation injury up to the point of settlement because all of the medical evidence states that all of your symptoms and all of your pain was attributed to the motor vehicle accident and not to any workplace distress or workplace injury’.

    ·The file note pointed out that ‘the only potential claim would be in relation to these injuries [and] would be [for] an aggravation of your injuries that occurred after settlement of your claims … from September 2009 onwards’. There was also discussion of the advice that the claim might not succeed since Ms Bozic’s move to Centrelink, Queanbeyan, a move which she claimed led to an aggravation of her conditions, was a reasonable administrative action under the Act and hence could lead to a refusal of the claim.

    ·She was also advised that Comcare had accepted a commercial settlement, and that the Tribunal had been advised that the matter would not proceed to hearing.

    ·In an email from her solicitor on 22 September 2012, Ms Bozic was advised of the final amount she would receive when legal fees had been deducted.

    ·A copy of the Tribunal’s consent terms, which Ms Bozic said she had not seen before another firm of solicitors gave her a copy in 2012, was included in the file.

    ·There is an email from her solicitor to Ms Bozic dated 24 September 2012 stating ‘I am proceeding to sign and settle on these terms as we discussed a few minutes ago’.

    ·There is an email from her solicitor dated 2 October 2012 enclosing a copy of the consent decision.

    Conclusion

14. The evidence provided in this matter, including the file of documents provided by Ms Bozic, indicates that Ms Bozic had the reasons for the advice not to proceed to a hearing explained to her, she had been advised and given a copy of the terms of the consent agreement prior to them being signed on her behalf, and she had been provided with a copy of the terms of the consent decision in October 2012.

15. Accordingly the Tribunal finds that Ms Bozic was aware of the reasons for and had agreed to a settlement, and that she had seen the terms of the settlement prior to it being signed. In those circumstances, she cannot establish that she was misled by her solicitors, that they did not inform her that a hearing would not be held, or that the matter was to be settled by consent.

16. In addition, the Tribunal notes that this information was available to Ms Bozic by no later than early October 2012, that is, close to two years ago.  She did not seek to reinstate the matter until June 2014, that is some twenty months later.  That is a considerable delay in asking for the consent agreement to be overturned and the matters to be reinstated and proceed to a hearing. 

17. Having considered all the evidence, the Tribunal is not satisfied that the matter should be reinstated.  The application for reinstatement is rejected.

I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of RM Creyke Senior Member

....................[sgd]....................................................

Associate: Sarah Wardell

29 August 2014

Date of interlocutory hearing	4 August 2014
Applicant	In person
Advocate for the Respondent	Andrew Schofield
Solicitors for the Respondent	Comcare